93 Decision Citation: BVA 93-09456
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-30 141 ) DATE
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THE ISSUES
1. Whether new and material evidence has been received to
reopen a claim for service connection for a spastic colon.
2. Whether new and material evidence has been received to
reopen a claim for service connection for a hiatal hernia.
3. Entitlement to service connection for alcoholism as
secondary to service-connected post-traumatic stress
disorder.
4. Entitlement to service connection for hypertension, to
include hypertensive vascular disease, secondary to
service-connected post-traumatic stress disorder.
5. Entitlement to service connection for a neurogenic
bladder as secondary to alcoholism.
6. Entitlement to service connection for bursitis of the
right elbow.
7. Whether new and material evidence has been received to
reopen a claim for an effective date prior to April 8, 1986,
for the assignment of a 100 percent disability rating for
post-traumatic stress disorder.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Hal Smith, Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals
(Board or BVA) on appeal from rating decisions from the San
Diego, California, regional office (RO). The appeal ensued
following an April 1989 rating decision which denied service
connection for bursitis. A "Report of Contact" document
from July 1989 indicates that the veteran wished to reopen
Board of Veterans' Appeals decisions from May 1983, January
1986 and April 1989. A notice of disagreement as to the
issue of bursitis was received on August 4, 1989. This
document was also interpreted as requesting that previous
claims for service connection for a spastic colon and hiatal
hernia be reopened.
A statement of the case (SOC) as to bursitis was issued on
September 20, 1989. A supplemental statement of the case
(SSOC) was issued on May 2, 1990, which addressed the issues
of whether new and material evidence had been submitted
concerning the BVA decisions of 1983, 1986 and 1989. The
substantive appeal was received on May 14, 1990. A personal
hearing was conducted in June 1990 and all issues were
addressed that same month by a hearing examiner.
In an April 1991 decision, the Board requested that the RO
consider the claims for service connection for alcoholism
and hypertension as secondary to post-traumatic stress
disorder (PTSD), and for a neurogenic bladder as secondary
to alcoholism. These claims were denied on rating decision
in April 1991, and a supplemental statement of the case was
issued on May 30, 1991.
In a November 1991 decision, the Board, in part, requested
that the RO ask the veteran to specify the issues he sought
to reopen in regard to the prior Board decisions. The
veteran responded to this request by correspondence in
December 1991. A supplemental statement of the case was
issued on January 17, 1992. The appeal was returned to the
Board on September 24, 1992, and was docketed on October 2,
1992. It was referred to the appellant's representative,
Paralyzed Veterans of America, Inc., and that organization
submitted additional written arguments to the Board in
November 1992. Thereafter, the case was referred to a
section of the Board for appellate review.
The veteran had active service from November 1945 to
September 1946 and February 27, 1951, through March 22,
1955.
CONTENTIONS OF APPELLANT ON APPEAL
Essentially, the veteran contends that service connection is
warranted for a spastic colon and for a hiatal hernia.
Additionally, he argues that alcoholism and hypertension are
secondary to his service-connected PTSD and that he has a
neurogenic bladder that is secondary to alcoholism. He also
argues that a 100 percent rating for PTSD should be
established from a date prior to April 8, 1986, and he
opines that bursitis of the right shoulder had its onset
during service or is secondary to PTSD.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review and consideration of all
evidence and material of record in the appellant's claims
file, and for the following reasons and bases, it is the
decision of the Board that the preponderance of the evidence
is against the claims for entitlement to service connection
for hypertension, to include hypertensive vascular disease,
and bursitis as secondary to service-connected PTSD, and
that new and material evidence has not been received to
reopen claims for service connection for a spastic colon, a
hiatal hernia or for an effective date prior to April 8,
1986, for a 100 percent disability rating for PTSD.
Additionally, the evidence does not support the grant of
service connection for a neurogenic bladder as secondary to
alcoholism. The preponderance of the evidence, however,
supports a grant of service connection for alcoholism as a
manifestation of service-connected PTSD.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
originating agency.
2. The agency of original jurisdiction denied entitlement
to service connection for a spastic colon and a hiatal
hernia in June 1988.
3. Additional evidence submitted since that time consists
of the transcript of a June 1990 personal hearing; excerpts
from a medical text concerning PTSD and nephrology, a
February 1989 private physician's report and a report
prepared by the Intergovernmental Relations and Human
Resources Committee entitled "Diversion of Funds From
Vietnam Veterans Readjustment Counseling Program." This
evidence does not confirm that a spastic colon or a hiatal
hernia were of service onset.
4. In the context of this case, alcohol abuse (in
remission) represents a symptom of the service-connected
PTSD.
5. Hypertension, to include hypertensive vascular disease,
is not causally related to service-connected PTSD.
6. A neurogenic bladder was first diagnosed many years
after service and is not causally related to a
service-connected disorder.
7. Bursitis of the right elbow was not clinically
demonstrated during service or thereafter.
8. The Board denied entitlement to an effective date prior
to April 8, 1986, for a 100 percent disability evaluation
for PTSD in April 1989.
9. Evidence submitted since the April 1989 decision
consists of the transcript of a June 1990 personal hearing;
excerpts from a medical text concerning PTSD and nephrology
and a report prepared by the Intergovernmental Relations and
Human Resources Committee entitled "Diversion of Funds From
Vietnam Veterans Readjustment Counseling Program." This
evidence does not show that the veteran was 100 percent
disabled due to PTSD during the one year preceding the
receipt of the April 8, 1986, application.
CONCLUSIONS OF LAW
1. Evidence received since the originating agency denied
entitlement to service connection for a spastic colon and a
hiatal hernia in 1988 is not new and material and the
veteran's claims have not been reopened; the June 1988
determination remains final. 38 U.S.C.A. §§ 1110, 1131,
5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156,
3.303, 20.302 (1992).
2. The veteran's alcoholism is proximately due to
service-connected PTSD. 38 U.S.C.A. §§ 1110, 1131 (West
1991); 38 C.F.R. § 3.310 (1992).
3. Post service hypertension, to include hypertensive
vascular disease, is not proximately due to or the result of
service-connected PTSD. 38 C.F.R. §§ 3.303(c), 3.310(a)
(1992).
4. Bursitis of the right elbow was not incurred in or
aggravated by active service, nor is it proximately due to
or the result of service-connected PTSD. 38 U.S.C.A. §§
1110, 1131, 5110 (West 1991); 38 C.F.R. §§ 3.303, 3.310(a)
(1992).
5. Neurogenic bladder was not incurred in service and is
not proximately due to or the result of a service-connected
disorder. 38 U.S.C.A. §§ 1110, 1131, 5110 (West 1991); 38
C.F.R. §§ 3.303, 3.310(a) (1992).
6. The decision of the Board of Veterans' Appeals in April
1989 denying entitlement to an effective date prior to April
8, 1989, for a 100 percent disability evaluation for PTSD is
final. 38 U.S.C.A. §§ 7103, 7104 (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, we note that the veteran has presented plausible
or well-grounded claims, within the meaning of 38 U.S.C.A §
5107(a) (West 1991). We also find that the facts relevant
to the issues on appeal have been properly developed and
that the statutory obligation of the Department of Veterans
Affairs (VA) to assist the veteran in the development of his
claims has been satisfied. 38 U.S.C.A. § 5107(a) (West
1991).
I. and II. New and Material Evidence for
Service Connection for a Spastic Colon
and a Hiatal Hernia
As noted above, entitlement to service connection for a
spastic colon and a hiatal hernia was denied by an
unappealed rating action of June 1988. A notice of
disagreement must be filed within one year of the date of
notification of the initial determination; otherwise, that
determination will become final. 38 U.S.C.A. § 7105 (West
1991); 38 C.F.R. § 20.302 (1992).
Evidence which was of record at the time of the June 1988
determination consisted of service medical records and
private and Department of Veterans Affairs (VA) medical
records. The service medical records did not include
diagnoses or findings of chronic spastic colon or a hiatal
hernia. Likewise, post service records do not show
treatment for either of these disorders. Since disability
resulting from injury or disease is required for a grant of
service connection, and resulting disability had not been
shown in this case, that denial was in accord with then
existing legal and medical criteria, and is final.
Since then, the veteran has submitted no objective evidence
showing a chronic spastic colon or a hiatal hernia. Added
to the record was the transcript of a June 1990 personal
hearing, a private physician's report from February 1989 and
excerpts from a medical text, but this evidence is primarily
concerned with other claims. In the absence of any
objective corroboration of a spastic colon or hiatal hernia
in service or thereafter, it is our conclusion that there is
no new and material evidence which would reopen the claim
for service connection for these disorders.
III. Service Connection for Alcoholism
as Secondary to PTSD
Our review of the records shows that service connection was
denied for alcoholism on a direct incurrence basis by a
Board decision in 1983. As per Board remand request in
April 1991, the RO was asked to consider the issue of
entitlement to service connection for alcoholism as
secondary to service-connected PTSD. That office
subsequently denied service connection on a secondary
basis. The issue is now on appeal, and is addressed below.
The evidence of record shows that the veteran reported a
history of alcohol abuse when treated at a VA facility in
December 1981. A private examination report from March 1983
indicates that the veteran reported that he had abused
alcohol since he was in the military. When examined by a
board of three psychiatrists in July 1983, the examiners
noted that the veteran exhibited PTSD symptomatology to
include excessive use of alcohol. A VA hospital summary
from February-March 1984 reports abuse of alcohol since
discharge from service. At a subsequent VA examination in
May 1986, he stated that he had drank alcohol heavily for
many years. He had stopped one year earlier. Records dated
after 1986 do not include reference to abuse of alcohol.
The veteran asserts that his past history of alcohol abuse
should be service-connected. We point out that service
connection for alcoholism may be granted only when it is
shown to be proximately related to a service-connected
disability. Otherwise, alcoholism is considered to be the
result of willful misconduct. In the case at hand, service
connection is in effect for PTSD, and as indicated by the
three psychiatrists who examined the veteran in 1983,
alcohol abuse is a symptom of this psychiatric disorder.
Although the record indicates that the appellant apparently
no longer drinks alcohol, we are of the opinion (with
resolution of reasonable doubt in his favor) that his past
abuse was a symptom of his service-connected PTSD. In view
of the fact that alcohol abuse is associated with PTSD, we
are of the opinion that the scope of the veteran's
service-connected PTSD should be enlarged to include
alcoholism (in remission).
IV. Service Connection for Hypertension
as Secondary to PTSD
It is also asserted that hypertension, to include
hypertensive vascular disease, is secondary to PTSD. The
evidence of record, however, does not establish than any
post service hypertension or alleged hypertensive vascular
disorder is the direct or proximate result of the veteran's
PTSD.
In explanation, we point out that the record shows that the
veteran reported a longstanding history of hypertension as
early as 1981. He indicated that he was on medication for
this disorder. Later, the veteran filed a claim for
entitlement to service connection for hypertensive vascular
disease although the record is devoid of any actual
treatment records showing that this disorder was diagnosed.
At any rate, we point out that accepted medical principles
show that the veteran's post service hypertension and
alleged heart problems developed independent of his
psychiatric disorder.
A direct causal relationship between a psychiatric disorder
and organic heart disease (e.g., hypertensive valvular
disease) has not been established. Cecil, Textbook of
Medicine, at 152, 153 (19th ed. 1992), indicates that the
"major pathologic process leading to disease of the heart
and blood vessels is atherosclerosis, with hypertension
either a contributing or a primary problem." There are a
number of risk factors associated with cardiac disease,
including cigarette smoking, high blood pressure, blood
cholesterol levels, obesity, diabetes and physical
inactivity. Id. at 153. In addition, psychosocial factors
and stress have also been recognized as risk factors
associated with cardiac disease. Heart Disease 1179-1181
(Eugene Braunwald, M.D., ed., 3rd ed. 1988). However, none
of these psychologic risk factors has been established as a
direct cause of hypertension or coronary artery disease, to
include hypertensive vascular disease. Accordingly, the
Board is unable to conclude that there was any direct,
causal relationship between the veteran's service-connected
PTSD and his post service hypertension, to include
hypertensive vascular disease.
V. Service connection for a Neurogenic
Bladder as Secondary to Alcoholism
Dorland's Illustrated Medical Dictionary 173 (26th ed.
1981), defines a neurogenic bladder as "any condition of
dysfunction of the urinary bladder caused by a lesion of the
central or peripheral nervous system." It is clear from the
medical evidence of record that the veteran has been
diagnosed as having such a disability. In the late 1970's,
it was noted that he had bladder spasticity. (See August
1977 medical record.) A urinary tract infection was
diagnosed in December 1978. In 1979, a neurogenic bladder
was diagnosed. Subsequent VA records in 1981 and 1984 note
the presence of a neurogenic bladder.
It is contended that the veteran's neurogenic bladder is
secondary to alcoholism. The RO recently denied the claim
noting that alcoholism was not a service-connected
disorder. Thus, service connection was not warranted on a
secondary basis. However, as indicated in a previous part
of this decision, it was this panel's determination that
alcohol abuse is part and parcel of the veteran's
service-connected PTSD. Therefore, the claim must now be
granted if sound medical principles show that alcoholism can
result in a neurogenic bladder.
Neurologic lesions of the bladder "are liable to cause
severe urgency, frequency, and incontinence, with impaired
awareness of the state of the bladder." Clinical Neurology,
Vol. 4, 63 (Robert J. Joynt, M.D., ed., Rev. ed., 1992).
Therefore, the question that must be answered is whether the
drinking of alcohol can cause such a lesion to develop. The
pertinent medical text shows that such lesions develop as
the result of brain stem vascular accidents, particularly in
elderly men. Additionally, it is noted that those with
parkinsonism may experience disturbance of the bladder
function. Other causes of bladder lesions are reported to
include damage to the spinal cord, multiple sclerosis and
diabetes. Id. at 63. It is not reported that alcoholism
has any part to play in the development of a neurogenic
bladder. We therefore find this medical treatise convincing
that the veteran's neurogenic bladder developed
independently of the drinking of alcohol. Service
connection is not warranted.
VI. Service Connection for Bursitis
As to the issue of whether service connection is warranted
for bursitis, the threshold question to be answered is
whether the veteran has submitted evidence of a
well-grounded claim; that is, one which is plausible.
38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78
(1990). The applicable law provides that service connection
may be established for chronic disability resulting from
disease or injury incurred in or aggravated by service. 38
U.S.C.A. § 1110. In this case, the evidence does not show
that bursitis was identified during service. It was also
contended, however, that this disability developed secondary
to service-connected PTSD. Disability which is proximately
due to or the result of a service-connected disease or
injury shall be service connected. 38 C.F.R. § 3.310.
However, the evidence submitted in support of his claim does
not show that the veteran currently has bursitis. While
there are private and VA medical documents of record, there
is no mention of bursitis. Consequently, since bursitis has
not been objectively identified, the claim is not plausible
or well-grounded within the meaning of 38 U.S.C.A.
§ 5107(a). Rabideau v. Derwinski, 2 Vet.App. 141 (1992),
Murphy v. Derwinski, 1 Vet.App. 78 (1990), Fields v.
Derwinski, U. S. Vet. App. No. 90-933 (Dec. 2, 1991).
Therefore, there is no duty to assist the veteran in the
development of his claim regarding that issue, and the claim
must fail. Id.
VII. An Effective Date Earlier then April 8, 1986,
for a 100 percent Disability Rating for PTSD
As to this issue, a brief recitation of certain facts is in
order. The veteran's separation from service was in March
1955. He filed a claim for VA benefits to include
"character and behavior suffered from Army service" in
November 1980; he had not filed any prior claim with the VA
for benefits of any kind. He appealed this decision and in
August 1983, the RO granted service connection for PTSD. A
50 percent rating was assigned from July 28, 1983, the date
it was agreed upon by three psychiatrists that the veteran
had PTSD. The 50 percent rating was confirmed and continued
on numerous occasions in 1983 and 1984.
In January 1986, the Board denied the veteran's claim for an
increased rating for PTSD. It was still rated 50 percent
disabling at that time. As noted in 38 C.F.R. § 3.400
(1992), this represented a final adjudication. This
regulation also points out that the effective date of a
claim reopened after final adjudication shall not be earlier
than the date of receipt of such an application, except
that, in the case of a claim seeking increased disability
compensation, the award may be one year prior to he receipt
of an application if it is ascertainable than an increase in
disability had occurred during that one-year period.
The threshold question regarding the issue of whether new
and material evidence has been submitted to reopen the claim
for an earlier effective date for a 100 percent rating for
PTSD is whether the veteran has submitted a well-grounded
claim, that is, one which is plausible. 38 U.S.C.A. §
5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990). If not,
there is no duty to assist him in the development of his
claim, and the claim must fail. Id. The veteran contends
that a 100 percent rating is warranted prior to April 8,
1986. However, as pointed out in the April 1989 Board
decision, the pertinent laws and regulations provide that
the effective date of a claim reopened after final
adjudication shall not be earlier than the date or receipt
of such an application, except that, in the case of a claim
seeking increased disability compensation, the award may be
one year prior to the receipt of an application if it is
ascertainable that an increase in disability had occurred
during that one-year period. 38 U.S.C.A. § 5110 (West
1991); 38 C.F.R. § 3.400 (1992).
Therefore, the evidence submitted since the April 1989
determination is relevant if it points to increased
disability due to PTSD during the one year prior to the
receipt of the April 8, 1986, application. Clearly, the
evidence provided, (a hearing transcript, excerpts from a
medical text and a report of a study conducted by a Human
Resources Committee) does not include objective information
concerning the treatment of the veteran from April 1985 and
April 1986. Consequently, there is no plausible claim
within the meaning of 38 U.S.C.A. § 5107(a). Rabideau v.
Derwinski, 2 Vet.App. 141 (1992), Murphy v. Derwinski, 1
Vet.App. 78 (1990), Fields v. Derwinski, U.S. Vet. App. No.
90-933 (dec. 2, 1991). Therefore, the request to reopen the
claim is not well grounded.
ORDER
New and material evidence has not been received to reopen
the claims for service connection for a spastic colon and a
hiatal hernia.
Service connection for alcoholism (as a primary disorder),
hypertension, and bursitis of the right elbow is denied.
New and material evidence has not been received to reopen a
claim for service connection for an effective date prior to
April 8, 1986, for a 100 percent disability rating for
PTSD.
The veteran's service-connected PTSD includes alcoholism (in
remission).
Service connection for a neurogenic bladder is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
C. P. RUSSELL
JACK W. BLASINGAME
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266
(West 1991), a decision of the Board of Veterans' Appeals
granting less than the complete benefit, or benefits, sought
on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988 (see sec. 402 of the Veterans'
Judicial Review Act (Pub. L. 100-687)). The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have
received is your notice of the action taken on your appeal
by the Board of Veterans' Appeals.